Regime geral dos atos eletrónicos – um regime esquecido

In addition to the digitization of physical evidence associated with the modernization of the mechanisms of the digitalized civil process, the future of Justice is closely linked to digital proof: the use of originally electronic documents to prove contracts and other legally relevant acts. The proliferation of electronic communications (replacing postal mail, fax communications and even telephone), in its multiple forms (electronic mail, instant messages, and the multiple public and private communications services provided by social networks), as well as the expansion of electronic commerce, and in particular the generalization of electronic contracting, has been increasing exponentially the use of electronic means for the practice of legal acts. Digital proof assumes a central role in civil law, both from a substantive and an adjective perspective. The regime of validity and probative value of documents, signatures and electronic communications enshrined in Decree-Law No. 290-D/99, of 2 August, represents a general regime for civil law of paramount importance in the Information Society. Unfortunately, the Portuguese legislator has repeatedly approved exceptional rules in individual diplomas, contradicting or ignoring the existence of this general regime.

The Role of Local Contracting Authorities in Green Purchasing of Paper Products

Green Public Procurement is currently a voluntary instrument to promote Sustainable Consumption and Production and Sustainable Industrial Policy. Surveys in this field help to understand how individual States, Public Authorities and Organizations, are approaching this voluntary instrument and thus how far they support Eco-Innovations and Sustainable Economy. Our survey focuses on mapping of units of local self-governments in the Slovak Republic that carried out Green Public Procurement in the category of paper products through the Electronic Contracting System (ECS) in 2017. We consider local self-government units to be major consumers of paper products, especially because of their extensive administration, what makes them a target group to promote the use of Green Public Procurement in a given category in practice. The total number of contracts awarded through the ECS in 2017 was 471. As the results show, the share of Green Public Procurements in the total number of Public Procurements in the Slovak Republic in 2017 was not satisfactory. In order to improve the situation, it is necessary to further deepen the targeted dissemination of examples of good practice in Green Public Procurement.

Digitalization of Transactions and Consumer Protection in Wrap contracting

E-commerce today gives opportunities for businesses in the online environment to expand their businesses rapidly and provide services to larger group of online consumers. Although the online medium is a comfortable platform for carrying out commercial/consumer transaction, the purchasers are disadvantaged due to various major reasons like lack of adequate information about the products and services, acceptance of the standard form contracts (SFC) which binds parties to the terms and conditions prescribed by the e-commerce business providers based on their convenience which includes dealing with defects, redressal mechanisms included, etc. This leave no option/feedback for online purchasers before or at the time of making their transaction. One of several defences which can be claimed by the online purchasers is unconscionability in contract clauses. The difficulty on the part of consumers is to prove unfairness which can be either substantive or procedural. To deal with SFCs, courts have concerned that online users consenting to these agreements leads to absolute exploitation on the part of businesses without considering the mutual benefits of either party which is the essence of the contract. The article focusses on the concept of wrap contracting, the legality and enforceability of standard forms used in digital transactions and existing legal regimes in various jurisdictions and also steps to be taken to regulate web-based business/service providers in dealing with modernized electronic contracting. The article reveals that the existing legal mechanisms and the role of law dealing with SFCs is not adequate protecting online consumers and there is an urgent need to amend or formulate regulations leading to absolute consumer protection.

3. Certainty and formalities

This chapter looks at the need for certainty and formalities in contracting. It explores case law which illustrates, on the one hand, that a willingness of the parties to make a contract does not necessarily amount to a legally binding agreement, whilst on the other hand, there is potential for the court to fill in any gaps to give effect to agreements. The issues surrounding an agreement which is expressed to be ‘subject to contract’ are explored in light of the recent Supreme Court case of RTS Flexible Systems Ltd. The reasons for when contract formalities may be required are also noted. There is also discussion of electronic contracting, in relation to the introduction of the Electronic Identification and Trust Services for Electronic Transactions Regulations (2016/696).

Terms of Use

Electronic contracting has experienced a sea change in the last decade. Tenyears ago, courts required affirmative evidence of agreement to form acontract. No court had enforced a shrinkwrap license, much less treated aunilateral statement of preferences as a binding agreement. Today, bycontrast, it seems widely (though not universally) accepted that if youwrite a document and call it a contract, courts will enforce it as acontract even if no one agrees to it. Every court to consider the issue hasfound clickwrap licenses, in which a user clicks I agree to standard formterms, enforceable. A majority of courts in the last ten years haveenforced shrinkwrap licenses, on the theory that people agree to the termsby using the software they have already purchased. Finally, and morerecently, an increasing number of courts have enforced browsewrap licenses,in which the user does not see the contract at all but in which the licenseterms provide that using a Web site constitutes agreement to a contractwhether the user knows it or not. Collectively, we can call theseagreements terms of use because they control (or purport to control) thecircumstances under which buyers of software or visitors to a public Website can make use of that software or site.The rise of terms of use has drawn a great deal of attention because of themass-market nature of the resulting agreements. Terms of use are draftedwith consumers or other small end users in mind. Commentators - myselfamong them - have focused on the impact of this new form of contract onconsumers. But in the long run they may have their most significant impactnot on consumers but on businesses. The law has paid some attention to theimpact of terms of use on consumers. Virtually all of the cases that haverefused to enforce a browsewrap license have done so in order to protectconsumers; conversely, virtually all the cases that have enforcedbrowsewrap licenses have done so against a commercial entity. Andshrinkwrap and clickwrap cases, while enforcing some contracts againstconsumers, have protected those consumers against certain clausesconsidered unreasonable. Businesses, however, are presumed to know whatthey are doing when they access another company's Web site, so courts aremore likely to bind them to that site's terms of use. Sophisticatedeconomic entities are unlikely to persuade a court that a term isunconscionable. And because employees are agents whose acts bind thecorporation, the proliferation of terms of use means that a large companyis likely agreeing to dozens or even hundreds of different contracts everyday, merely by using the Internet. And because no one ever reads thoseterms of use, those multiple contracts are likely to have a variety ofdifferent terms that create obligations inconsistent with each other andwith the company's own terms of use.We have faced a situation like this before, decades ago. Asbusiness-to-business commerce became more common in the middle of the 20thCentury, companies began putting standard contract terms on the back oftheir purchase orders and shipment invoices. When each side to a contractused such a form, courts had to confront the question of whose formcontrolled. After unsuccessful judicial experimentation with a variety ofrules, the Uniform Commercial Code resolved this battle of the forms byadopting a compromise under which if the terms conflicted, neither party'sterms became part of the contract unless the party demonstrated itswillingness to forego the deal over it. Rather, the default rules ofcontract law applied where the parties' standard forms disagreed, but whereneither party in fact insisted on those terms.I have three goals in this paper. First, I explain how courts came toenforce browsewrap licenses, at least in some cases. Second, I suggest thatif browsewraps are to be enforceable at all, enforcement should be limitedto the context in which it has so far occurred - against sophisticatedcommercial entities who are repeat players. Finally, I argue that even inthat context the enforcement of browsewraps creates problems for commonpractice that need to be solved. Business-to-business (b2b) terms of useare the modern equivalent of the battle of the forms. We need a parallelsolution to this battle of the terms. In Part I, I describe the developmentof the law to the point where assent is no longer even a nominal element ofa contract. In Part II, I explain how the recent decisions concerningbrowsewrap licenses likely bind businesses but not consumers, and theproblems that will create for commercial litigation. Finally, in Part III,I discuss possible ways to solve this coming problem and some broaderimplications the problem may have for browsewrap licenses generally.

Thoughts on techno-social engineering of humans and the freedom to be off (or free from such engineering)

This Article examines a constitutional problem that largely goes unnoticed and unexamined by legal scholars — the problem of technosocial engineering of humans. After defining terms and explaining the nature of the problem, I explain how techno-social engineering of humans is easily ignored, as we perform constrained cost-benefit analyses of incremental steps without contemplating the path we are on. I begin with two nonfiction stories, one involving techno-social engineering of human emotions and a second involving technosocial engineering of children’s preferences. The stories highlight incremental steps down a path. Then, through plausible fictional extensions, I explore steps further down the path. The Article ends with a fact pattern familiar to every reader. It explains how the electronic contracting environment we experience regularly online is an example of techno-social engineering of humans with the (un) intended consequence of nudging humans to behave like machines — perfectly rational, predictable, and ultimately programmable.

ONLINE CONTRACT AND THE ISSUES OF GHARAR AND UNCERTAINTY

The use of internet as a medium of communication has widened the scope of contract formation. Sale and purchase activities are held online either for performance of contract through the internet itself or to be performed outside the cyber world. Under Islamic Law there are several areas of uncertainty which will have significant impacts on electronic contracting according to Shariah. This is considered as a very fundamental issue especially in the online contract which implies the non physical presence of the parties. In fact if certain fundamental issues in the online contract are not resolved, then the dominant entry of the principles of gharar (uncertainty) arises, and this will make online contracts in Islamic Shariah not feasible. This article seeks to examine what is actually meant by gharar and how it affects the enforceability of the electronic contract in the Shariah. It also discusses the issue of uncertainty under Common Law with a view to ascertain its implications.